We affirm the IAS court's denial of defendant's motion for summary judgment since she has not appeared for examination before trial and there exist questions of material fact as to her negligence. However, we find it was an improvident exercise of discretion to strike defendants' answer for failure to appear for examination before trial in light of the absence of willful or contumacious conduct and counsel's diligent efforts to find her. If defendant does not appear for examination before trial within a time period to be set by the motion court, then we find that a sufficient sanction would be to preclude the use of Ms. Querol's testimony at trial (see, Green v. Mohamed, 275 A.D.2d 599; Heyward v. Benyarko, 82 A.D.2d 751).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.